COVID-19 Halts The Supreme Court – Pending Environmental Case to be Heard in the Fall

The U.S. Supreme Court postponed its April 20th argument session, the last session of the year, as a result of COVID-19. The last time the Supreme Court closed its doors to the public due to an epidemic was during the Spanish flu outbreak of 1918, when the court postponed oral arguments by a few weeks. This time, the Court found a way to continue functioning as best it can, like the rest of the world, remotely.

There were 20 cases waiting to be heard. The Court issued a press release on April 13, 2020, indicating it will hear 10 of those cases in the first two weeks of May and the rest of the cases in early fall.

There is one environmental and natural resources case area that had been set for hearing in April and now will be heard in the fall:

Texas v. New Mexico: Whether (1) the River Master erred in calculating New Mexico’s delivery credit for evaporation losses under the Pecos River Compact; (2) the River Master appropriately entertained New Mexico’s request for delivery credit for evaporation losses under the Compact.

The Supreme Court has jurisdiction over interstate water disputes. The case involves water rights of the Rio Grande River among the states of Colorado, New Mexico, and Texas. The Rio Grande originates in Colorado, flows south into New Mexico, and flows into Texas near El Paso. The Pecos River begins in north-central New Mexico and flows in a southerly direction into Texas until it joins the Rio Grande River. The Pecos River, as a tributary to the Rio Grande, has its own water apportionment Compact between New Mexico and Texas (the Pecos River Compact, Act of June 9, 1949).

In 1974, Texas filed an original action in this Court, alleging that New Mexico has breached its obligations under Art. III(a) of the Compact. After appointing a Special Master, the Court ap- proved the Special Master’s reports specifying the methodology to be used in determining New Mexico’s obligation under the Compact. The Court appointed a River Master to make the required calculations because of the “degree of judgment” involved. The current dispute arose as a result of a tropical storm in September 2014 that caused heavy rainfall in the Pecos River basin, causing the reservoirs in Texas to become dangerously full. To avoid catastrophic overflowing of the reservoir, Texas asked New Mexico to temporarily store “flood flows” that constitute Texas’s share of water flowing from the Pecos River. The dispute involves the accounting for evaporation from the flood flows.

In addition, the following (non-environmental) cases will be heard remotely by telephone conference on May 4, 5, 6, 11, 12 and 13 in a limited number of previously postponed cases, including the following (dates have not yet been assigned):

18-9526,McGirt v. Oklahoma

19-46, United States Patent and Trademark Office v. Booking.com B.V.
19-177,Agency for International Development v. Alliance for Open Society International, Inc.

19-267,Our Lady of Guadalupe School v. Morrissey-Berru, and 19-348, James School v. Biel

Included among this list are two Trump challenges to US House subpoenas for financial documents and a challenge arising from a New York grand jury’s investigation tied to Trump tax records. Presumably, the Court is prioritizing these cases to be heard and decided to head off any impacts to the upcoming election.

The Justices and counsel will all participate remotely in the May hearings. And, for the first time ever, the Court will provide a live audio feed of these arguments to news media. The Court began audio recording oral arguments in 1955. In the past, audio files would be released to the public at the end of each argument week; although, written transcripts of oral arguments are available on the court’s website on the same day as the arguments. This will be the first time that the audio file will be provided to the media via a live feed. Cameras, however, are still not allowed in the Court. It is possible the Court will continue the practice of live audio feeds during oral arguments after the Court returns to business as usual. Then again, many of the justices have expressed strong opinions opposing live audio feeds, arguing the public could misinterpret questions asked by the justices.

These are the pending environmental and natural resources cases that have been argued, but the opinions have not yet been published:

Atlantic Richfield Co. v. Christian, et al., argued in front of the court on December3, 2019, is a case in which the Court: Whether (1) a common-law claim for restoration seeking cleanup remedies that conflict with remedies the Environmental Protection Agency (EPA) ordered is a jurisdictionally barred “challenge” to the EPA’s cleanup under 42 U.S.C. § 9613 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA); (2) a landowner at a Superfund site is a “potentially responsible party” that must seek EPA approval under 42 U.S.C. § 9622(e)(6) of CERCLA before engaging in remedial action, even if the EPA has never ordered the landowner to pay for a cleanup; and (3) CERCLA preempts state common-law claims for restoration that seek cleanup remedies that conflict with EPA-ordered remedies.

County of Maui, Hawaii v. Hawaii Wildlife Fund, argued November 12, 2019: Whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater.

United States Forest Service v. Cowpasture River Preservation Association, argued February 24, 2020: Whether the U.S. Forest Service has the authority to grant rights-of-way under the Mineral Leasing Act through lands traversed by the Appalachian Trail within national forests.

Trump v. NAACP, McAleenan v. Vidal, and Department of Homeland Security v. Regents of the University of California, consolidated cases: Whether lower courts have been right to find that the Trump administration’s rescission of the Obama-era Deferred Action for Childhood Arrivals program violates the Administrative Procedure Act because it did not go through a public notice and comment process. While not an environmental case, the Trump administration’s defense of its decision to rescind the Deferred Action for Childhood Arrivals program could have broader administrative law impacts that would affect environmental matters because environmental law involves regulations and rulemaking, the topic at the heart of the DACA case.

The justices continue to hold conferences to discuss and decide the outcomes of argued cases and petitions for certiorari. The justices were allowed to participate remotely by telephone. Non-environmental cases heard already during this 2019-2020 term and awaiting resolution include: LGBTQ worker discrimination, Louisiana abortion regulations, and the Trump administration’s plan to overturn the DACA program.

Delays to cases where certiorari has not yet been granted are expected due to impacts to the normal day-to-day operations, which the Court acknowledges will continue “until further notice.” The Supreme Court Covid-19 Order, issued March 19, 2020, ruled:

The deadline to file any petition for a writ of certiorari is extended to 150 days from the date of the lower court judgment, order denying discretionary review, or order denying a timely petition for rehearing.

Any motions for extensions of time pursuant to Rule 30.4 will ordinarily be granted by the Clerk as a matter of course if the grounds for the application are difficulties relating to COVID-19 and if the length of the extension requested is reasonable under the circumstances.

The Clerk will entertain motions to delay distribution of a petition for writ of certiorari where the grounds for the motion are that the petitioner needs additional time to file a reply due to difficulties relating to COVID-19.

However, these modifications to the Court’s Rules and practices do not apply to cases in which certiorari has been granted or a direct appeal or original action has been set for argument. The Supreme Court Building is closed to the public, but open for official business, with most